The Hawaiian gazette., 1887-03-15
SUPREME COURT DECISION.
Lrnutinnel fronl nrqe ID


| the spirit of fair play which it is said is
/ characteristic of "free press, the "other
! side of the Question: was written. When
| ever our attention is called to publications
/ which in the discretion, which the Court is
/ bound to exercise temperately and wisely,
| appear to be calculated to have preIudiclal
| effect upon the rights of parties in cases
pending in our Courts, we are bound to
| notice them, as tending 70 prevent the even
/ flow of Justice al punish them as con-
| tennis AS the c. before US is the first in
stance of constructive contempt of this
character brought to our notice, and as the
| case is not a serious one, we impose no fine.
! The judgment of the Court is that the res
/ pondentS are guilty of a contempt of Court
\ and must pay costs, which are taxed at s..
Asford ( Ashford for the Rule; the Res
| pondents in person.
| Honolulu, March 18th, 1887.
Dissenting Opmion Of NJ. J1sties MeCnlly.
| The first Hawaiian statute relating to con-
tempt u found IN the Act to Organize the
/ Judic:,.N Department, enacted September,
/ 1S4T, Sec o.. Chr. 'irs'. lt provides that
/ the said Courts, S,Iu- ,uar,> Of record, have
/ power to punish summarily any person
| guilty of the following acts: six classes of
! acts are enumerated. The maximum penal
| ties are fixed, and there is proviso that
persons punished for contempt under any of
/ liable TO indictment for such contempt, if
! the same be an indictable ofense.
This Act was expressly repealed by Section
1l9I of the Civil Code, May II, 1859, but had
been amended by implication by the pro-
visions of the Penal Code, first enacted June
! 81, 1850, in SEQ. Is of Chap. so, which some
what more fully and particularly enumerates
acts of contempt which, on conviction in a
Jury trial. may be punished by certain penal
ties. 1t also provides that every judicial
tribunal, acting as such, may punish con-
tempts BY summary proceeding, upon scale
of penalties, differently prescribed, to the
different Courts.
The Civil Code (lS59)i has chapter,
XIV, entitled "Of Contempts.n 1t pro-
yides for the summary punishment of con
tempt. with q scale of punishments, which
may be imposed by the Supreme Court, Cir
cult Court, Circuit Judge, District Justice.
etc No definition or description of acts
which may be considered contemptS is given
in this chapter. The penalties are slightly
varied from those prescribed in Chap. MN.
of the Penal Code of 1850, but otherwise it
is a re-enactment in the Civil Code of the
provision in the Penal Code for summary
punishment of contempt emitting, how
ever, the enumeration of acts which are con-
tempt, and the provision for trying such by
Jury, and the penalty following such convic-
ton. But 1t adds TO the statutes upon con-
tempt DIV SSCllOu 4VJi lUdL tSEsOuS puulsueO
summarily shall also be liable to Indictment
for the same misconduct, if it be an indict-
able offense, the Court, in passing the second
sentence, to take into consideration the pre-
vious penalty, and by Section 109S the pro-
vision that when the contempt consists in
the omission or refusal to perform an act
which Is yet in the power of the party to
perform, he may be imprisoned until he have
performed it.
The last legislation is the enactment of
the new or Compiled Penal Code, 1870, which
retains the description of ofenses, and sub
Joins the 2+th chapter of the Civil Code, in
place of the former list of penalties for con-
tempt punished summarily. with also Sec
tons 1897 and l09S.
Il appears from this statement of tbs
statutes that we have always had statute
describing acts which are contempts OF
Court, and providing for the summary pun
ishment of them, and, in addition, that
when they are indictable oifenses, they may
also be presented on indictment, and further
punished.
The view taken by the Court is that there
may be also other acts not prescribed in the
statute which may be held and punished for
contempts under the common law power of
the Court, and that this is intimated by
Section 1897 in the phrase persons punished
according TO the provisions of this chapter,
shall also be liable to indictment for the
SAILS ulsCOuuuCL, II II De al lQulCE6Dl6
offense."
Ny construction of this is, that persons
who have been punished sUmmarily which
is what this chapter prescribes, may also be
proceeded against By Indictment, and that
the ofenses, not being defined in this chap
ter, for which penalty may be imposed sum-
marty, are those which are described in the
statute which euumerates contempts, and no
others.
Section 1893, which allows a conditional
term of imprisonment, does not seem to me
to authorize sn enlargement of cases beyond
the statute it merely providing this new
mode of penalty for cases in the statute
which il might apply to-for instance, re-
fusal to answer as witness" or +" refusal 70
answer legal and proper interrogations,"
Z" villful disobedienee of any lawful process
or order"
If We were without statutes prescribing
for contempt, the Court might be left to its
inherent power of self-protection, and would
probably find its rules IN the common law
authorities.
This is only conjectural. The need of
such power in the Courts was recognized
from the beginning by statutes granting that
power. and l am unable to assent to the con-
cIusiou of the Court that, besides the ex-
prsssIy enumerated acts of contempt, the
Court can hold other acts to be contenpts,
and subject summary to penalties of fine,
lnprISOume1E, OF DOH. LIS court mas OIEeu
had occasion to hold that the common law,
90 H0BsiHs and pr0DTO rigOrs, did not exist here.
The terms of Section Is Of Chapter % of
the old Penal Code, being Chapter 80 OF the
new Penal Code, in describing contempts,
are definite and not general. Says Broom, in
commenting on the maxim, srDTsSsiO MINIS
est srclusf0 aItsrias- Z" Ii sometimes happens
that in & statute, the language Of which may
fairly comprehend many different cases,
some only are expressly mentioned, by way
of example merely, and not as excluding
others OF q similar nature Sometimes, on
the contrary, the expressions used are re-
strictfTe. and intended 10 exclude all things
which are not enumerated"
The citation made BY the Court Of that
rart of the statute which concerns contempts
BY newspaper publication, It viii be seen
contains no general provision for " like or
similar cases. and in the view OF the Court,
cannot be extended TO the case before Us.
With great respect, dissent from the view
that cases Of publication, not coming within
the ststute can be treated as contempts."
Upon the newspaper article under con
sideratiOn | will only say, in addition to the
view Of the Court that there Is no auimad-
version on evidence II a pending trial that